# Hriday Ram & Ors v. Paras Nath & Anr

- **Citation:** (2024) 5 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Second Appeal No. 352 of 2003
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hriday-ram-ors-v-paras-nath-anr-51980
- **Pages:** 9

## Headnote

Act, 1950 - Section 9 - Private wells, trees
in abadi, and buildings are to be settled
with the existing owners or occupiers
thereof - Sahan - Sahan refers to land
appurtenant to a house that is beneficial to
it. If such land has been used by the owners
prior to the abolition of Zamindari, it would
be deemed to be settled with them under
Section 9 of the said Act - Suit for
Permanent Injunction - Appellants filed
suit for permanent injunction claiming that
the land in dispute is their Sahan and
5 All. Hriday Ram & Ors. Vs. Paras Nath & Anr.
773
appurtenant land to their house, which has
been settled with them. Held - Admittedly,
the land in dispute faces the respondents'
house and is on its northeastern side, not
the appellants', as indicated by the
Commissioner in his report. Appellants
have their Sahan in front of their houses on
the northern side. Therefore, the land in
dispute cannot be said to be appurtenant
land of the appellants' houses and is not
settled with them under Section 9 of the
Act of 1950 (Para 16).

Civil Procedure Code, S. 96 - First Appeal -
First appellate court agreeing with the
view of the trial court need not restate the
effect of the evidence or reiterate the
reasons given by the trial court; expression
of general agreement with reasons given
by the court, decision of which is under
appeal, would ordinarily suffice. (Para 20)

Dismissed. (E-5)

List of Cases cited:

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES
towards the full and final payment and
discharged the claim and demands under the
above mentioned policy of the insured. It
has not been alleged that the receipt has been
signed without knowing the contents. The
plaintiff-appellant has signed the receipt in
English and it appears that she had signed
after fully knowing it. The plaintiffappellant has also received the amount
without reserving any right towards full and
final satisfaction of the claim under the
policy. The first appellate court, after
examining the pleadings, evidence and
receipt given by the plaintiff-appellant, has
recorded a finding that the respondent i.e.
the plaintiff-appellant has signed the receipt
in English and it appears that the respondent
new English and signed the receipt knowing
as to what is written in it. The appellate
court, considering the case laws relied by the
plaintiff-appellant also, has recorded a
finding that the respondent i.e. the plaintiffappellant without reserving any right has
accepted Rs.21,103.40 in full and final
satisfaction of the claim under the policy
therefore the claim for double of the amount
is not maintainable. This Court does not find
any illegality or error in the findings
recorded
by
the
appellate
court.
Accordingly, this Court is of the view that
the acceptance of the amount of policy with
full and final satisfaction will amount to
relinquishment of the double amount of
policy.

19. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that on the
basis of medical attendant certificate issued
by the doctor and the evidence adduced
before the trial court, it could not be proved
that the death of the deceased was as a result
of drowning as an accidental death,
therefore the plaintiff-appellant is not
entitled for double amount of policy in terms
of insurance policy. The plaintiff-appellant
has also accepted the original amount of
policy i.e. Rs.21,103.40 paise towards full
and final satisfaction without reserving any
right, which will amount to relinquishment
of double amount of policy. The aforesaid
substantial questions of law formulated in
this appeal are answered accordingly. Thus,
this second appeal is misconceived and
devoid of any merit, which is liable to be
dismissed.

20. The second appeal is, accordingly,
dismissed. No order as to costs.
----------
(2024) 5 ILRA 772
APPELATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 352 of 2003

Hriday Ram & Ors. ...Appellants
Versus
Paras Nath & Anr. ...Respondents

Counsel for the Appellants:
Bajrang Bahadur Singh

Counsel for the Respondents:
Ved Prakash Yadav

U.P. Zamindari Abolition and Land Reforms
Act, 1950 - Section 9 - Private wells, trees
in abadi, and buildings are to be settled
with the existing owners or occupiers
thereof - Sahan - Sahan refers to land
appurtenant to a house that is beneficial to
it. If such land has been used by the owners
prior to the abolition of Zamindari, it would
be deemed to be settled with them under
Section 9 of the said Act - Suit for
Permanent Injunction - Appellants filed
suit for permanent injunction claiming that
the land in dispute is their Sahan and
5 All. Hriday Ram & Ors. Vs. Paras Nath & Anr.
773
appurtenant land to their house, which has
been settled with them. Held - Admittedly,
the land in dispute faces the respondents'
house and is on its northeastern side, not
the appellants', as indicated by the
Commissioner in his report. Appellants
have their Sahan in front of their houses on
the northern side. Therefore, the land in
dispute cannot be said to be appurtenant
land of the appellants' houses and is not
settled with them under Section 9 of the
Act of 1950 (Para 16).

Civil Procedure Code, S. 96 - First Appeal -
First appellate court agreeing with the
view of the trial court need not restate the
effect of the evidence or reiterate the
reasons given by the trial court; expression
of general agreement with reasons given
by the court, decision of which is under
appeal, would ordinarily suffice. (Para 20)

Dismissed. (E-5)

List of Cases cited:

1. Maharaj Singh Vs St. of U.P. & ors.; (1976) 1
SCC 155

2. Santosh Hazari Vs Purushottam Tiwari; (2001)
3 SCC 179

3. G.Amalorpavam & ors. Vs R.C.Diocese of
Madurai & ors.; (2006) 3 SCC 224

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Bajrang Bahadur Singh,
learned counsel for the appellants and Shri
Ved Prakash Yadav, learned counsel for the
respondents.

2. This Second Appeal under Section
100 of the Civil Procedure Code 1908 has
been filed for setting aside the judgment and
decree dated 30.09.2003, passed by the
Additional District Judge/Special Judge,
E.C.Act, Court Room No.8, Sultanpur in
Civil Appeal No.5 of 1998; Hriday Ram and
others Versus Ram Kuber and others and the
judgment and decree dated 11.11.1997
passed by the Civil Judge,( Jr.Div.), North,
Sultanpur in Regular Suit No.949 of 1993;
Hriday Ram and others Versus Ram Kuber
and others.

3. This appeal was admitted to decide
the following substantial questions of law:-

"1. Whether, the report of the
Commissioner indicating that disputed
abadi falls facing the house of the defendant,
will it deprive the plaintiff appellant to use
the abadi land as it was used by the common
members of the family?

2. Whether, the claim based on the
joint property and there is admission of the
defendant that three Bhitoor and Ghhor are
in existence, the courts below could reject
such admission of the defendant without
arising (which should be assigning) any
cogent reason whatsoever?
 3. Whether, the judgment of the
learned appellate court is justifiable as he
has said that there is no need to re-examine
the evidence although the trial court has
misread the evidence of D.W.2 who has
given evidence with regard to jointness of
the property?

4. Learned counsel for the
appellants submitted that the land in dispute
was being used commonly by the plaintiffsappellants
(here-in-after
referred
as
appellants) and the defendants/respondents
(here-in-after referred as the respondents)
since the time of their ancestors. It is coming
from the common ancestors of the parties
Bakhtawar. The partition had taken place
between the two sons of Bakhtawar i.e. the
predecessor-in-interest
of
the
parties
Buddhu and Shiv Raj except the land in
dispute. The respondents tried to make
construction on the land in dispute, therefore
the appellants had to file the suit for
774 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent injunction for restraining the
respondents from making any construction
on the land in dispute or removing the
Ghhor, Condore and Kharhi etc. of the
appellants or cut the trees and Banskot etc.
without partition. He further submitted that
the joint ness of the property was not
disputed by D.W.2, but the learned Trial
court has misread the same and learned
Appellate court without considering the
same dismissed the appeal. The courts
below have also failed to consider that there
is admission of the respondents that three
Bhithoor and Ghhor exists on the land in
dispute. He further submitted that merely
because the land in dispute is facing the
house of the defendants does not deprive the
appellants from using as his abadi because it
was being used by their common members
of family. On the basis of above learned
counsel for the appellants submitted that the
trial court as well as the appellate court have
committed grave miscarriage of justice by
recording erroneous and perverse findings
without considering the evidence on record
correctly and dismissed the suit as well as
the appeal, therefore the same are liable to
be set aside.

5. Per contra, learned counsel for
the respondents does not dispute regarding
their ancestors Buddhu and Shiv Raj.
However he submitted that they are in
possession on their properties since the
time of their ancestors and the question of
partition does not arise. The land in
dispute was a pond situated on the northeastern side of the house of the
respondents which was filled in by the
respondents and they are in possession of
the said land since prior to abolition of
Zamindari. Thus they have got the right
and entitlement over that land in dipsute
under Section 7-AA of the U.P. Zamindari
Abolition and Land Reforms Act 1950
(here-in-after referred as the Act of 1950)
and it is settled with them on abolition of
Zamindari under Section 9 of the said Act.
On the basis of above learned counsel for
the respondents submitted that the trial
court as well as the appellate court have
rightly and in accordance with law
considered the evidence and material on
record and dismissed the suit as well as the
appeal filed by the appellants. There is no
illegality or error in the impugned
judgments and decrees passed by the
courts below, which may call for any
interference by this court. The appeal is
misconceived and lacks merit, which is
liable to be dismissed with cost.

6.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

7. The Suit for permanent
injunction was filed by the appellants
claiming joint-ness of the land in dispute
between the appellants and the respondents.
The appellants claim that the land in dispute
was a common Abadi of both the parties.
They use to utilize it as their Sahan for
Ghoor, Kandore, Kharahi etc. Their grainery
(Khalihan) also used to be on the said land.
However for the last 12 years their grainery
(Khalihans) used to be on separate lands.
Both the parties have Banskot, trees of
Mango, Jamun, Goolar, Seesam, Babul etc.
on the land in dispute. The Plaintiff No.1
and 2 have 1/4th share each and defendants
No.1, 2 and 3 have 1/6th share each in the
land in dispute. There is no partition in
regard to the land in dispute between the
parties. However it has been admitted that
the properties of the parties were coming
from the common ancestor Bakhtawar and
the partition had taken place between the
sons of Bakhtawar i.e. Buddhu and Shiv Raj
and thereafter the parties are in possession
5 All. Hriday Ram & Ors. Vs. Paras Nath & Anr.
775
on their portions. The following pedigree
has been given:-

8. The respondents have filed written
statement denying all the averments made
in the plaint. They have also stated that the
site plan given in the plaint is without any
scale and against the position on spot. It
was also stated that the position of house
has also wrongly been shown. It has also
been stated that the defendants had a door
on the northern side of their house since
the beginning and their Sahan is on the
northern side and in the said appurtenant
land there is Khalihan and Sariya. Their
houses are separate since the time of their
ancestors Buddhu and Shiv Raj. There is
passage between both the houses. It has
also been denied that there was any
common residence of their family or
fooding of their fathers Buddhu and Shiv
Raj, therefore the question of partition
does not arise. Their Abadi is separate
since the beginning. It has also been stated
that the respondents have filled the pond
on the north-eastern side of their house
and they are using it for keeping their
animals
and
various
purposes
of
agriculture and keeping Kolhu Gulaur,
Ghoor and Khalihan since prior to
abolition of Zamindari, thus the same is
settled with them under Section 9 of the
Act of 1950. The land in dispute is their
Sahan and appurtenant land to their house,
which is settled with them.

9. After exchange of pleadings seven
issues were framed by the trial court.
Considering the pleadings of the parties
and the evidence on record the trial court
dismissed the suit holding that the
plaintiffs have failed to prove from their
evidence that the land in dispute is in the
joint ownership and possession of the
plaintiffs and defendants, rather it has
been found that the defendants are the
exclusive owner and in possession of the
land in dispute. The land in dispute as per
site plan given by the appellants in their
plaint and the Commissioner Report is on
the north-eastern side of the house of
respondents. The house of the appellants
is on the western side of the house of the
respondents and there is a passage
between their houses.

10. The P.W.1, in his statement on
oath, has admitted that the partition had
taken place between Buddhu and Shiv Raj
during their life time and their houses,
agricultural
fields
and
fooding
had
separated. The trial court has recorded a
finding that it is apparent from the Khasra
Abadi Ext.1 that since 1935 or prior to that
their
houses
were
partitioned.
The
respondents have also given the evidence
that they are in possession and are owner of
the land in dispute and the appellants are on
their part since the time of Buddhu and Shiv
Raj as they had separate properties. They
have denied the joint-ness of property. In
any case it is not in dispute that the parties
are in possession and owner of their
properties since the time of Buddhu and
Shiv Raj.

11. In view of above, even if the
contention of appellants is taken to be
776 INDIAN LAW REPORTS ALLAHABAD SERIES
correct that the parties had joint properties
and the partition had taken place between
Buddhu and Shiv Raj in their life time then
the question arises as to when all the
properties were divided, as to why the land
in dispute was not divided between them.
Learned counsel for the appellants also
failed to give any explanation to this despite
repeated queries made by the court.
Therefore the contention of the appellants
that the land in dispute was also a joint
property of the parties is misconceived and
not tenable.

12. Now the question arises as to
whether the land in dispute, which falls on
the north-eastern side of the house of the
respondents can be said to be appurtenant
land of the appellants, which may have
settled with them under Section 9 of the Act
of 1950. It is settled law that the land
appurtenant to the house which is beneficial
for house is called the appurtenant land i.e.
Sahan and if the same is being used by them
since prior to abolition of Zamindari, it
would be deemed to be settled with them
under Section 9 of the said Act.

13. The appurtenant land is a land
which may be used for the purpose of use of
the building. The Hon'ble Supreme Court
considered the 'appurtenance' in the case of
Maharaj Singh Versus State of U.P. and
others; (1976) 1 SCC 155 and has held that
the 'appurtenance' is dependence of the
building on what appertains to it for its use
as a building. The relevant paragraphs 27
and 28 are extracted here-in-below:-

"27. "Appurtenance', in relation
to a dwelling, or to a school, college ....
includes all land occupied therewith and
used for the purpose thereof (Words and
Phrases Legally Defined---Butterworths,
2nd edn).
 "The word 'appurtenances' has a
distinct and definite meaning ....Prima
facie it imports nothing more than what is
strictly appertaining to the subject-matter
of the devise or grant, and which would, in
truth,
pass
without
being
specially
mentioned:Ordinarily, what is necessary
for the enjoyment and has been used for
the purpose of the building, such as
easements, alone will be appurtenant.
Therefore, what is necessary for the enjoy-
ment of the building is alone covered by
the expression 'appurtenance'. If some
other purpose was being fulfilled by the
building and the lands, it is not possible to
contend that those lands are covered by the
expression 'appurte- nances'. Indeed 'it is
settled by the earliest authority, repeated
without contradiction to the latest, that
land cannot be appurtenant to land. The
word 'appurtenances' includes all the
incorporeal hereditaments attached to the
land granted or demised, such as rights of
way, of common ...but it does not include
lands in addition to that granted'. (Words
and Phrase, supra).

28. In short, the touchstone of
'appurtenance' is dependence of the
building on what appertains to it for its use
as a building. Obviously, the hat, bazar or
mela is not an appurtenance to the
building. The law thus leads to the clear
conclusion that even if the buildings were
used and enjoyed in the past with the
whole stretch of vacant space for a hat or
mela, the land is not appurtenant to the
prin- cipal subject granted by s. 9, viz.,
buildings. This conclustion is inevitable,
although the contrary argument may be
ingenious. What the High Court has grant-
ed, viz., 5 yards of surrounding space, is
sound in law although based on guesswork in fact. The appeal fails and is
dismissed but, in the circumstances,
without costs. "
5 All. Hriday Ram & Ors. Vs. Paras Nath & Anr.
777

14. As per own case of the appellants
and the site plan appended to the plaint, the
Sahan of the appellants is in the northern
side of their house. The land in dispute is on
the north-eastern side of the house of the
respondents. The trial court has recorded a
finding on the basis of evidence of P.W.1 at
page 5 that the location of the land in dispute
is the same as has been given by the
Commissioner in the site plan prepared by
him, according to which the land in dispute
is situated on the north-eastern side of the
house of the appellants and respondents and
in view of the evidence adduced by the
appellants that they filled the pond in front
of their house and using the same as Sahan
land, Buddhu i.e. predecessor-in-interest of
the appellants would have filled the land in
front of his house in place of the northeastern side of the respondents. The trial
court has also recorded a finding that P.W.1
has stated in his evidence that their Khalihan
is still in the land in dispute, whereas in the
plaint they have stated that it is not for the
last 12 years. As per evidence of the P.W.1,
the land in dispute is adjacent to the house
of Baijnath and P.W.2 has admitted in his
evidence that it is at a distance of 1-2 Latha
of the house of Baijnath. Therefore evidence
of P.W.1 cannot be believed in absence of
any evidence in regard to joint ownership of
property- in-dispute and the evidence of
P.W.1 is not supported by the documentary
evidence. The evidence of P.W.2 has not
been found to be believable in regard to
filling of the land in dispute by Buddhu and
Shiv Raj jointly because as per his age he
would have been 5-7 years of age in 1952
and as per their claim the land in dispute
must have been filled prior to that.

15. So far as the admission of
defendants in regard of Bithoor and Ghoor
on the land in dispute is concerned, merely
because the D.W1 and D.W.2 have admitted
the existence of three Bithore and Ghoor etc.
on the land in dispute it cannot be said to be
admission on their part in regard to jointness of property because it has been
admitted by the parties that the partition has
taken
place
among
the
defendants
themselves, who were five brothers and it
may be on account of partition among
themselves. A plea was also taken by the
appellants that they have no other land
except the land in dispute for their Sahan
land, whereas P.W.1 has admitted that their
father had taken the house etc. of Kanhaiya
after giving premium to the Zamindar and
Kanhaiya had left the village. It has also
been admitted by him in his evidence on
oath by P.W.1 that the house and land of
Kanhaiya was on the east of his house,
therefore the contention in this regard is also
misconceived and not tenable.

16. The trial court has recorded the
findings on the basis of pleadings, evidence
and material on record and the land in
dispute, which is situated on the northeastern side of the house of the parties is not
appurtenant to the house of the appellants.
Admittedly the land in dispute is facing the
house of the respondents and is in it's northeastern side and not the house of the
appellants, which has also been indicated by
the Commissioner in his report. The
appellants have their Sahan in front of their
houses on the northern side. Therefore the
land in dispute cannot be said to be
appurtenant land of the houses of the
appellants, and settled with them under
Section 9 of Act of 1950.

17. The appellate court has recorded
the findings on the basis of arguments,
pleadings and evidence on record and after
recording that the P.W. 1 has admitted that
the partition had taken place during life time
of Buddhu and Shiv Raj, therefore it is very
778 INDIAN LAW REPORTS ALLAHABAD SERIES
astonishing as to why the partition of the
land-in-dispute had not taken place and the
same continued for such a long period as a
joint property. The appellate court has
further recorded a finding that the Khasra of
the Abadi was prepared in 1935 in which all
the properties of Buddhu and Shiv Raj have
been shown separately in their names and if
the land in dispute would have been a joint
property then the same would have been
recorded as such, whereas no properties are
recorded as their joint property. The claim of
the appellants that prior to consolidation
they had no land in front of their house
except the land in dispute, is also not
sustainable in view of admission of P.W.1
that they had taken property of one
Kanhaiya after paying the premium. The
Appellate court has also recorded a finding
that the land-in- dispute is not in front of the
house of the appellants, rather it is in front
of the house of the respondents, therefore it
is not believable and also not obvious that
the plaintiffs would have filled the pond in
front of the house of the respondents in place
of in front of their house. The appellate court
has also recorded a finding on the basis of
Khasra that the predecessor-in-interest of
the appellants Buddhu had other properties
also in addition to the house and the
appellants have admitted that they are
residing in the house of Buddhu and their
Khalihan is not on the land in dispute for the
last 12 years, therefore after recording a
finding that in this way the contention of the
appellants does not seem to be true, held that
the trial court has minutely analyzed all the
evidences in accordance with law and the
appellate court is in agreement with the
same, therefore the same is not required to
be rebutted.

18. This court is of the view that after
recording the relevant findings, if the
appellate court has recorded it's agreement
with the findings recorded by the trial court
and reasons given for recording such
findings, there is no illegality or error in it.
Learned counsel for the appellant has also
failed to show any illegality or perversity in
the findings recorded by the trial court.

19. The Hon'ble Supreme Court, in the
case of Girja Nandini Devi Versus
Bijendra Narain Choudhury; AIR 1967
SC 1124, has held that Expression of
general agreement with reasons given by the
Court decision of which is under appeal
would ordinarily suffice.

20. The aforesaid view was reiterated
by the Hon'ble Supreme Court in Santosh
Hazari Versus Purushottam Tiwari;
(2001) 3 SCC 179 holding that the appellate
court agreeing with the view of the trial
court need not restate the effect of the
evidence or reiterate the reasons given by
the trial court; expression of general
agreement with reasons given by the court,
decision of which is under appeal, would
ordinarily suffice.

21. The aforesaid judgments have been
followed by the Hon'ble Supreme Court, in
the case of G.Amalorpavam and others
Versus R.C.Diocese of Madurai and
others; (2006) 3 SCC 224. The relevant
paragraphs 10 to 12 are extracted here-inbelow:-

"10. At this juncture it would be
relevant to note what this Court said in Girja
Nandini
Devi v. Bijendra
Narain
Choudhury [(1967) 1 SCR 93 : AIR 1967
SC 1124] . In AIR para 12 it was noted as
follows : (SCR p. 101 F-G)

"It is not the duty of the appellate
court when it agrees with the view of the
trial court on the evidence either to restate
the effect of the evidence or to reiterate the
5 All. Hriday Ram & Ors. Vs. Paras Nath & Anr.
779
reasons given by the trial court. Expression
of general agreement with reasons given by
the Court decision of which is under appeal
would ordinarily suffice."

11. The
view
was
reiterated
in Santosh
Hazari v. Purushottam
Tiwari;[(2001) 3 SCC 179] . In para 15 it
was held with reference to Girja Nandini
Devi case [(1967) 1 SCR 93 : AIR 1967 SC
1124] as follows : (SCC pp. 188-89)
 "The
appellate
court
has
jurisdiction to reverse or affirm the findings
of the trial court. First appeal is a valuable
right of the parties and unless restricted by
law, the whole case is therein open for
rehearing both on questions of fact and law.
The judgment of the appellate court must,
therefore, reflect its conscious application of
mind and record findings supported by
reasons, on all the issues arising along with
the contentions put forth, and pressed by the
parties for decision of the appellate court.
The task of an appellate court affirming the
findings of the trial court is an easier one.
The appellate court agreeing with the view
of the trial court need not restate the effect
of the evidence or reiterate the reasons given
by the trial court; expression of general
agreement with reasons given by the court,
decision of which is under appeal, would
ordinarily
suffice
(see Girja
Nandini
Devi v. Bijendra Narain Choudhury [(1967)
1 SCR 93 : AIR 1967 SC 1124] ). We would,
however, like to sound a note of caution.
Expression of general agreement with the
findings recorded in the judgment under
appeal should not be a device or camouflage
adopted by the appellate court for shirking
the duty cast on it. While writing a judgment
of reversal the appellate court must remain
conscious of two principles. Firstly, the
findings of fact based on conflicting
evidence arrived at by the trial court must
weigh with the appellate court, more so
when the findings are based on oral evidence
recorded by the same Presiding Judge who
authors the judgment. This certainly does
not mean that when an appeal lies on facts,
the appellate court is not competent to
reverse a finding of fact arrived at by the
trial Judge. As a matter of law if the
appraisal of the evidence by the trial court
suffers from a material irregularity or is
based on inadmissible evidence or on
conjectures and surmises, the appellate court
is entitled to interfere with the finding of
fact.
(See Madhusudan
Das v. Narayanibai [(1983) 1 SCC 35 : AIR
1983 SC 114] .) The rule is-and it is
nothing more than a rule of practice-that
when there is conflict of oral evidence of the
parties on any matter in issue and the
decision hinges upon the credibility of
witnesses, then unless there is some special
feature about the evidence of a particular
witness which has escaped the trial Judge's
notice or there is a sufficient balance of
improbability to displace his opinion as to
where the credibility lies, the appellate court
should not interfere with the finding of the
trial Judge on a question of fact. (See Sarju
Pershad v. Jwaleshwari
Pratap
Narain
Singh [1950 SCC 714 : 1950 SCR 781 : AIR
1951 SC 120] .) Secondly, while reversing a
finding of fact the appellate court must come
into close quarters with the reasoning
assigned by the trial court and then assign its
own reasons for arriving at a different
finding. This would satisfy the court hearing
a further appeal that the first appellate court
had discharged the duty expected of it. We
need only remind the first appellate courts of
the additional obligation cast on them by the
scheme of the present Section 100
substituted in the Code. The first appellate
court continues, as before, to be a final court
of facts; pure findings of fact remain
immune from challenge before the High
Court in second appeal. Now the first
appellate court is also a final court of law in
780 INDIAN LAW REPORTS ALLAHABAD SERIES
the sense that its decision on a question of
law even if erroneous may not be vulnerable
before the High Court in second appeal
because the jurisdiction of the High Court
has now ceased to be available to correct the
errors of law or the erroneous findings of the
first appellate court even on questions of law
unless such question of law be a substantial
one."

12. It
has
been
categorically
recorded by the High Court that the first
appellate court had considered the evidence
led on behalf of the parties and has given
findings to come to the conclusions arrived
at. It noted that the lower appellate court had
independently considered the evidence and
had given different findings on the issues
framed by the trial court and on the basis of
the arguments which were advanced before
it. It was further noted that there was
detailed discussion giving reasons for
affirming the order of the trial court.
Learned counsel for the appellants had
urged that the suit filed by the plaintiff was
not maintainable as the plaintiff was the
diocese represented by its procurator. It was
submitted that the plaintiff is not entitled to
any relief as was prayed for in the suit. This
point was not urged before the High Court
and, therefore, it would not consider
necessary to go into that aspect. Judged in
the background of legal principles set out
above, the judgment of the High Court does
not suffer from any infirmity."

22. In view of above and considering
the overall facts and circumstances of the
case this court is of the view that the trial
court has rightly and in accordance with law
considered and recorded findings on the
basis of pleadings and evidence adduced
before it including the evidence of D.W.2.
The impugned judgment and decrees passed
by the trial court as well as the appellate
court have rightly been passed in accordance
with law, which does not suffer from any
illegality or error. Thus the substantial
questions of law framed in this appeal are
answered accordingly. The appeal has been
filed on misconceived and baseless grounds
and it is liable to be dismissed.

23.

The
Second
Appeal
is,
accordingly, dismissed. No order as to cost.
----------
(2024) 5 ILRA 780
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 19066 of 2023

Chandrapal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Subhash
Chandra
Srivastava,
Sri
Rampyare Lal Srivastava

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Assured
Career
Progression (ACP) - GO dated 05.11.2014
- Petitioner was retired from service on
31.10.2019, a day before, when he was
entitled to his third ACP on 01.11.2019 -
Third ACP sought for - Entitlement - Parity
with
increment
claimed
-
Held,
an
increment
is
part
of
a
government
servant's pay. It is an accretion to the pay
that is earned during the course of
employment over the period of one year,
subject
to
good
behaviour
of
the
government
servant
concerned
-
By
contrast, to what an increment is, ACP is
very different. It is not something provided
in the routine, though it does come as an
accretion to the emoluments payable at
specified intervals. ACP is a device that has